Professional Documents
Culture Documents
288
64 S.Ct. 559
88 L.Ed. 733
STARK et al.
v.
WICKARD, Secretary of Agriculture, et al.
No. 211.
Argued Jan. 14, 1944.
Decided Feb. 28, 1944.
This class action was instituted in the United States District Court for the
District of Columbia, to procure an injunction prohibiting the respondent
Secretary of Agriculture from carrying out certain provisions of his Order No.
4, effective August 1, 1941, dealing with the marketing of milk in the Greater
Boston, Massachusetts, area. See Agricultural Marketing Agreement Act of
1937, 50 Stat. 246, 7 U.S.C. 601 et seq., 7 U.S.C.A. 601 et seq., and Order
4, United States Department of Agriculture, Surplus Marketing Administration,
Title 7, Code of Federal Regulations, Part 904. The district court dismissed the
suit for failure to state a claim upon which relief can be granted, and its
judgment was affirmed by the Court of Appeals for the District of Columbia,
136 F.2d 786. The respondent War Food Administrator was joined in this court
upon a showing that he had been given powers concurrent with those of the
Secretary. See Executive Order No. 9334, 50 U.S.C.A. Appendix, 601 note,
filed April 23, 1943, 8 F.R. 5423, 5425. We granted certiorari because of the
importance of the question to the administration of this Act. 320 U.S. 723, 64
S.Ct. 58.
The petitioners are producers of milk, who assert that by 904.7(b)(5) and
904.9 of his Order, the Secretary is unlawfully diverting funds that belong to
them. The courts below dismissed the action on the ground that the Act vests
no legal cause of action in milk producers, and since the decision below and the
argument here were limited to that point, we shall confine our consideration to
it.
3
The district court for the District of Columbia has a general equity jurisdiction
authorizing it to hear the suit;1 but in order to recover, the petitioners must go
further and show that the act of the Secretary amounts to an interference with
some legal right of theirs.2 If so, the familiar principle that executive officers
may be restrained from threatened wrongs in the ordinary courts in the absence
of some exclusive alternative remedy will enable the petitioners to maintain
their suit; but if the complaint does not rest upon a claim of which courts take
cognizance, then it was properly dismissed. The petitioners place their reliance
upon such rights as may be expressly or impliedly created by the Agricultural
Marketing Agreement Act of 1937 and the Order issued thereunder.
Although this Court has previously reviewed the provisions of that statute at
length and upheld its constitutionality,3 some further reference to it is necessary
to an understanding of the producer's interest in the funds dealt with by the
Order.4
The immediate object of the Act is to fix minimum prices for the sale of milk
by producers to handlers. It does not forbid sales at prices above the minimum.
It contains
state commerce as will establish prices to farmers at a level that will give
agricultural commodities a purchasing power with respect to articles that
farmers buy, equivalent to the purchasing power of agricultural commodities in
the base period; and, in the case of all commodities for which the base period is
the prewar period, August 1909 to July 1914, will also reflect current interest
payments per acre on farm indebtedness secured by real estate and tax
payments per acre on farm real estate, as contrasted with such interest payments
and tax payments during the base period. The base period in the case of all
agricultural commodities except tobacco and potatoes shall be the prewar
period, August 1909-July 1914. In the case of tobacco and potatoes, the base
period shall be the postwar period, August 1919July 1929.
'(2) To protect the interest of the consumer by (a) approaching the level of
prices which it is declared to be the policy of Congress to establish in
subsection (1) of this section by gradual correction of the current level at as
rapid a rate as the Secretary of Agriculture deems to be in the public interest
issuance of an order will tend to effectuate the declared policy of this title with
respect to any commodity or product thereof specified in subsection (2) of this
section, he shall give due notice of and an opportunity for a hearing upon a
proposed order.
'(4) After such notice and opportunity for hearing, the Secretary of Agriculture
shall issue an order if he finds, and sets forth in such order, upon the evidence
introduced at such hearing (in addition to such other findings as may be
specifically required by this section) that the issuance of such order and all of
the terms and conditions thereof will tend to effectuate the declared policy of
this title with respect to such commodity.
'(5) In the case of milk and its products, orders issued pursuant to this section
shall contain one or more of the following terms and conditions, and (except as
provided in subsection (7)) no others:
'(A) Classifying milk in accordance with the form in which or the purpose for
which it is used, and fixing, or providing a method for fixing, minimum prices
for each such use classification which all handlers shall pay, and the time when
payments shall be made, for milk purchased from producers or associations of
producers. Such prices shall be uniform as to all handlers, subject only to
adjustments for (1) volume, market, and production differentials customarily
applied by the handlers subject to such order, (2) the grade or quality of the
milk purchased, and (3) the locations at which delivery of such milk, or any use
classification thereof, is made to such handlers.
'(B) Providing:
'(i) for the payment to all producers and associations of producers delivering
milk to the same handler of uniform prices for all milk Footnote 4--Continued.
delivered by them: Provided, That, except in the case of orders covering milk
products only, such provision is approved or favored by at least three-fourths of
the producers who, during a representative period determined by the Secretary
of Agriculture, have been engaged in the production for market of milk covered
in such order or by producers who, during such representative period, have
produced at least three-fourths of the volume of such milk produced for market
during such period; the approval required hereunder shall be separate and apart
from any other approval or disapproval provided for by this section; or
'(ii) for the payment to all producers and associations of producers delivering
milk to all handlers of uniform prices for all milk so delivered, irrespective of
the uses made of such milk by the individual handler to whom it is delivered;
subject, in either case, only to adjustments for (a) volume, market, and
production differentials customarily applied by the handlers subject to such
order, (b) the grade or quality of the milk delivered, (c) the locations at which
delivery of such milk is made, and (d) a further adjustment, equitably to
apportion the total value of the milk purchased by any handler, or by all
handlers, among producers and associations of producers, on the basis of their
marketings of milk during a representative period of time.
'(C) In order to accomplish the purposes set forth in paragraphs (A) and (B) of
this subsection (5), providing a method for making adjustments in payments, as
among handlers (including producers who are also handlers), to the end that the
total sums paid by each handler shall equal the value of the milk purchased by
him at the prices fixed in accordance with paragraph (A) hereof.'
Among the provisions of subsection (7), referred to in Section 8c(5), is
authorization for terms described as follows:
'Sec. 8c(7)(D) Incidental to, and not inconsistent with, the terms and conditions
specified in subsections (5), (6), and (7) and necessary to effectuate the other
provisions of such order.'
Sections 8c(8) and 8c(9) provide, with exceptions not here relevant that a
marketing order must have the approval of the handlers of at least 50% of the
volume of the commodity subject to the order unless the Secretary, with the
approval of the President, determines that the proposed order is necessary to
effectuate the declared policy of the Act and 'is the only practical means of
advancing the interests of the producers of such commodity pursuant to the
declared policy * * *.' Section 8c(9)(B). Whether the handlers agree or not, an
order must be an appropriate declaration of policy,5 and it provides that the
Secretary of Agriculture shall hold a hearing when he has reason to believe that
a marketing order would tend to effectuate the purposes of the Act.6If he finds
that an order would be in accordance with the declared policy, he must then
issue it.7Sections 8c(5) and 8c(7) enumerate the provisions that the order may
contain. Section 8c(5)(A) authorizes the Secretary to classify milk in
accordance with the form or purpose of its use, and to fix minimum prices for
each classification. These minima are the use value of the milk. This method of
fixing prices was adopted because the economic value of milk depends upon
the particular use made of it.8It is apparent that serious inequities as among
producers might arise if the prices each received depended upon the use the
cooperatives as required by 904.9, and that the Act does not authorize the
Secretary to include in his order provision for payments of that kind or for
deductions to meet them. Apparently, this deduction for payments to
cooperatives is the only deduction that is an unrecoverable charge against the
producers. The other items deducted under 904.7(b) are for a revolving fund
or to meet differentials in price because of location, seasonal delivery, et cetera.
These producer petitioners allege that they have delivered milk to handlers in
the 'Greater Boston,' Massachusetts, marketing area under the provisions of the
Order. They state that they are not members of a cooperative association
entitled under the Order to the contested payments and that, as producers, many
of them voted against the challenged amendment on the producers' referendum
under 8c(9) and 8c(19) of the Act. These allegations are admitted by the
defense upon which dismissal was based, namely, that the petition fails to state
a claim upon which relief could be granted. From the preceding summary of
the theory and plan of the statutory regulation of minimum prices for milk
affecting interstate commerce, it is clear that these petitioners have exercised
the right granted them by the statute and Order to deliver their milk to 'Greater
Boston' handlers at the guaranteed minimum prices fixed by the Secretary of
Agriculture in the Order. Sec. 904.4. Upon accepting that delivery the handler
was required by the Order to pay to these producers their minimum prices in the
manner set forth in 904.8. Simply stated, this section required the handler to
pay directly to the producer the blended price as determined by the
administrator and to pay to the producers through the administrator for use in
meeting the deductions authorized by the order of the Secretary and approved
by two-thirds of the producers, 8c(9)(B), the difference between the blended
price and the minimum price. The Order directed the administrator to deduct
from the funds coming into his hands from the producers' sale price the
payments to cooperatives. 904.9.
It is this deduction which the producers challenge as beyond the Secretary's
statutory power. The respondents answer that the petitioners have not such a
legal interest in this expenditure or in the administrator's settlement fund as
entitles them to challenge the action of the Secretary in directing the
disbursement. The Government says that as the producers pay nothing into the
settlement fund and receive nothing from it, they have no legally protected right
which gives them standing to sue. There is, of course, no question but that the
challenged deduction reduces pro tanto the amount actually received by the
producers for their milk.
By the statute and Order, the Secretary has required all area handlers dealing in
the milk of other producers to pay minimum prices as just described.
904.1(6), 904.4; Act, 8c(14). The producer is not compelled by the Order to
deliver (Act 8c(13)(B) but neither can he be required to market elsewhere and
if he finds a dealer in the area who will buy his product, the producer by
delivery of milk comes within the scope of the Act and the Order. The Order
fixing the minimum price obviously affects by direct Governmental action the
producer's business relations with handlers. Columbia Broad-casting System v.
United States, 316 U.S. 407, 422, 62 S.Ct. 1194, 1202, 86 L.Ed. 1563. Cf.
Chicago Junction Case, 264 U.S. 258, 267, 44 S.Ct. 317, 320, 68 L.Ed. 667.
The fact that the producer may sell to the handler for any price above the
minimum is not of moment in determining whether or not the statute and Order
secure to him a minimum price. Should the producer sell his milk to a handler
at prices in excess of the minimum, the handler would nevertheless be
compelled to pay into the fund the same amount. The challenged deduction is a
burden on every area sale. 904.7(a), 904.8(b). In substance petitioners'
allegation is that in effect the Order directed without statutory authority a
deduction of a sum to pay the United States a sales tax on milk sold. The statute
and Order create a right in the producer to avail himself of the protection of a
minimum price afforded by Governmental action. Such a right created by
statute is mandatory in character and obviously capable of judicial enforcement.17
For example the Order could not bar any qualified producers in the milk shed
from selling to area handlers. Like the instances just cited from railway labor
cases, supra, n. 17, the petitioners here voluntarily bring themselves within the
coverage of the Act. It cannot be fairly said that because producers may choose
not to sell in the area, those who do choose to sell there necessarily must sell,
without a right of challenge, in accordance with unlawful requirements of
administrators. Upon purchase of his milk by a handler, the statute endows the
producer with other rights, e.g., the right to be paid a minimum price. Order,
904.4.
The mere fact that Governmental action under legislation creates an opportunity
to receive a minimum price does not settle the problem of whether or not the
particular claim made here is enforceable by the District Court. The deduction
for cooperatives may have detrimental effect on the price to producers and that
detriment be damnum absque injuria.18It is only when a complainant possesses
something more than a general interest in the proper execution of the laws that
he is in a position to secure judicial intervention. His interest must rise to the
dignity of an interest personal to him and not possessed by the people generally. 19
Such a claim is of that character which constitutionally permits adjudication by
courts under their general powers.20
We deem it clear that on the allegations of the complaint these producers have
such a personal claim as justifies judicial consideration. It is much more
Labor Board, 308 U.S. 401, 404, 412, 60 S.Ct. 300, 301, 305, 84 L.Ed. 347.
The ruling in Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27
S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, is not authority to the contrary. It
was there held that the statute placed the power in the Interstate Commerce
Commission to hear the complaint stated, not in the state court where it was
brought. The Commission award was then to be enforced in court. Page 438 of
204 U.S., page 354 of 27 S.C t., 51 L.Ed. 553, 9 Ann.Cas. 1075. Here, there is
no forum, other than the ordinary courts, to hear this complaint. When, as we
have previously concluded in this opinion, definite personal rights are created
by federal statute, similar in kind to those customarily treated in courts of law,21
the silence of Congress as to judicial review is, at any rate in the absence of an
administrative remedy, not to be construed as a denial of authority to the
aggrieved person to seek appropriate relief in the federal courts in the exercise
of their general jurisdiction. When Congress passes an Act empowering
administrative agencies to carry on governmental activities, the power of those
agencies is circumscribed by the authority granted.22This permit the courts to
participate in law enforcement entrusted to administrative bodies only to the
extent necessary to protect justiciable individual rights against administrative
action fairly beyond the granted powers. The responsibility of determining the
limits of statutory grants of authority in such instances is a judicial function
entrusted to the courts by Congress by the statutes establishing courts and
marking their jurisdiction. Cf. United States v. Morgan, 307 U.S. 183, 190, 191,
59 S.Ct. 795, 799, 83 L.Ed. 1211. This is very far from assuming that the courts
are charged more than administrators or legislators with the protection of the
rights of the people. Congress and the Executive supervise the acts of
administrative agents. The powers of departments, boards and administrative
agencies are subject to expansion, contraction or abolition at the will of the
legislative and executive branches of the government. These branches have the
resources and personnel to examine into the working of the various
establishments to determine the necessary changes of function or management.
But under Article III, Congress established courts to adjudicate cases and
controversies as to claims of infringement of individual rights whether by
unlawful action of private persons or by the exertion of unauthorized
administrative power.
It is suggested that such a ruling puts the agency at the mercy of objectors,
since any provisions of the Order may be attacked as unauthorized by each
producer. To this objection there are adequate answers. The terms of the Order
are largely matters of administrative discretion as to which there is no
justiciable right or are clearly authorized by a valid act. United States v. Rock
Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446. Technical details of
the milk business are left to the Secretary and his aides. The expenses of
litigation deter frivolous contentions. If numerous parallel cases are filed, the
courts have ample authority to stay useless litigation until the determination of
a test case. Cf. Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81
L.Ed. 153. Should some provisions of an order be held to exceed the statutory
power of the Secretary, it is well within the power of a court of equity to so
mold a decree as to preserve in the public interest the operation of the portion of
the order which is not attacked pending amendment.
It hardly need be added that we have not considered the soundness of the
allegations made by the petitioners in their complaint. The trial court is free to
consider whether the statutory authority given the Secretary is a valid answer to
the petitioners' contention. We merely determine the petitioners have shown a
right to a judicial examination of their complaint.
Reversed.
Mr. Justice BLACK is of the view that the judgment should be affirmed for the
reasons given in the opinion of the United States Court of Appeals for the
District of Columbia.
Mr. Justice JACKSON took no part in the consideration or decision of this
case.
Mr. Justice FRANKFURTER, dissenting.
The immediate issue before us is whether these plaintiffs, milk producers, can
in the circumstances of this case go to court to complain of an order by the
Secretary of Agriculture fixing rates for the distribution of milk within the
Greater Boston marketing area. The solution of that question depends, however,
upon a proper approach toward such a scheme of legislation as that formulated
by Congress in the Agricultural Marketing Agreement Act of 1937.
Apart from legislation touching the revenue, the public domain, national banks
and patents, not until the Interstate Commerce Act of 1887, 49 U.S.C.A. 1 et
seq., did Congress begin to place economic enterprise under systems of
administrative control. These regulatory schemes have varied in the range of
control exercised by government; they have varied no less in the procedures by
which the control was exercised. More particularly, these regimes of national
authority over private enterprise reveal great diversity in the allotment of power
by Congress as between courts and administrative agencies. Congress has not
made uniform provisions in defining who may go to court, for what grievance,
v. Curtis, 3 How. 236, 11 L.Ed. 576; Den ex dem. Murray's Lessee et al. v.
Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372; Hilton v.
Merritt, 110 U.S. 97, 38 S.Ct. 548, 28 L.Ed. 83; for a general survey, see
Freund, Administrative Powers over Persons and Property, 260-62. And
only the other day we found the implications of the Railway Labor Act, c. 347,
44 Stat. (part 2) 577, as amended, c. 691, 48 Stat. 1185, 45 U.S.C. 151 et seq.,
45 U.S.C.A. 151 et seq. to be such that courts could not even exercise the
function of keeping the National Mediation Board within its statutory authority.
Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95.
Were this list of illustrations extended and the various regulatory schemes
thrown into a hotchpot, the result would be hopeless discord. And to do so
would be to treat these legislative schemes as though they were part of a single
body of law instead of each being a self-contained scheme.
The divers roles played by judicial review in the administration of regulatory
measures other than the Agricultural Marketing Act cannot tell us when and for
whom judicial review of administrative action can be had under that Act. The
fact that certain classes of individuals adversely affected by a ruling of the
Interstate Commerce Commission can and other classes cannot obtain redress in
court, does not tell us what classes may and what classes may not obtain
judicial redress for action by the Secretary of Agriculture which affects these
respective classes adversely. And to cite the Switchmen's case, supra, in
support of this case is to treat our decisions too lightly. In the numerous cases
either granting or denying judicial review, grant or denial were reached not by
applying some 'natural law' of judicial review nor on the basis of some general
body of doctrines for construing the diverse provisions of the great variety of
federal regulatory statutes. Judicial review when recognizedits scope and its
incidencewas derived from the materials furnished by the particular statute in
regard to which the opportunity for judicial review was asserted. This is the
lesson to be drawn from the prior decisions of this Court on judicial review, and
not any doctrinaire notions of general applicability to statutes based on different
schemes of administration and conveying different purposes by Congress in the
utilization of administrative and judicial remedies for the enforcement of law.
However useful judicial review may be, it is for Congress and not for this
Court to decide when it may be usedexcept when the Constitution commands
it. In this case there is no such command. Common-law remedies withheld by
Congress and unrelated to a new scheme for enforcing new rights and duties
should not be engrafted upon remedies which Congress saw fit to particularize.
To do so impliedly denies to Congress the constitutional right of choice in the
selection of remedies, and turns common-law remedies into constitutional
necessities simply because they are old and familiar.
When recently the Agricultural Marketing Act was in litigation before us, we
sustained its constitutionality and defined its scope in the light of its history, its
purposes and its provisions. United States v. Rock Royal Co-op., 307 U.S. 533,
59 S.Ct. 993, 83 L.Ed. 1446. We held in that case that a milk handler cannot
challenge in court such an order as the one which is now assailed. Again we
must turn to the history, the purposes and the provisions of the Act to determine
whether Congress gave the producer the right of judicial relief here sought.
In 1931 and 1932, prices of manufactured dairy products reached the lowest
level in twenty-five years. Because of their relatively weak bargaining position,
milk producers suffered most seriously. See Mortenson, Milk Distribution as a
Public Utility, p. 6; Black, The Dairy Industry and the AAA, c. III; State Milk
and Dairy Legislation (U.S. Gov't Printing Office, 1941) p. 3. Accordingly,
Congress decided that the public interest in the handling of milk in interstate
commerce could no longer be left to the haggling of a disorderly market,
mitigated by inadequate organization within the industry. The Agricultural
Adjustment Act of 1933, c. 25, 48 Stat. 31, was the result. The 'essential
purpose' of the series of enactments thus initiated was to raise the producer's
prices. Sen.Rep. No. 1011, 74th Cong., 3d Sess., p. 3. The Act of 1933 was
amended in 1935, c. 641, 49 Stat. 750, and partially reenacted and amended by
the Agricultural Marketing Agreement Act of 1937, with which we are here
concerned. Chapter 296, 50 Stat. 246, c. 567, 50 Stat. 563, 7 U.S.C. 601 et
seq., 7 U.S.C.A. 601 et seq.
An elaborate enactment like this, devised by those who know the needs of the
industry and drafted by legislative specialists, is to be treated as an organism.
Every part must be related to the scheme as a whole. The legislation is a selfcontained code, and within it must be found whatever remedies Congress saw
fit to afford. For the Act did not give new remedies for old rights. It created
new rights and new duties, and precisely defined the remedies for the
enforcement of duties and the vindication of rights. Of course the statute
concerns the interests of producers, handlers and consumers. But it does not
define or create any legal interest for the consumer, and it specifically provides
that 'No order issued under this title shall be applicable to any producer in his
capacity as a producer.' 8c(13) (B).
The statute as an entirety makes it clear that obligations are imposed on
handlers alone. Section 8c(5)(A) authorizes the Secretary to classify milk
according to the form in which or the purpose for which it is used. Section
8c(5)(B)(ii) directs the Secretary to provide for the payment to producers of a
uniform price 'irrespective of the uses made of such milk by the individual
handler to whom it is delivered'. This latter, known as the 'blended price', is
computed under the Secretary's Order No. 4 of July 28, 1941, by multiplying
the use value of the milk by the total quantity, making specified deductions and
additions, and then dividing the resulting sum by the total quantity of the milk.
904.7(b). A deduction for payments to cooperatives which enters into this
computation is the object of petitioners' attack.
It is apparent that the minimum 'blended price' which the producer receives
may be different than the minimum 'use value' fixed by the Secretary or his
Administrator which the handler must pay. Thus 8c(5)(C) authorizes
provision for necessary adjustments. The mechanics of these adjustments are
described in the Secretary's Order No. 4. In short, the handler who sells or uses
his milk so that its value is more than the minimum 'blended price' he pays the
producer, must pay the excess to a settlement fund, and the handler who puts
his milk to a lower value use than the minimum 'blended price' he pays in turn
receives the difference out of the fund. 904.8(b).
Violation of any order by a handler makes him subject to criminal proceedings.
8c(14). Thus, while the Act and the Order may affect the interests of
producers as well as those of handlers, legally they operate directly against
handlers only. The corrective processes provided by the Act reflect this
situation. Section 8c(15) permits a handler to challenge an order before the
Secretary, and if dissatisfied, he may bring suit in equity before a district court.
Provision for judicial remedies for consumers and producers is significantly
absent. Such omission is neither inadvertent nor surprising. It would be
manifestly incongruous for an Act which specifically provides that no order
shall be directed at producers to give to producers the right to attack the validity
of such an order in court.
To create a judicial remedy for producers when the statute gave none is to
dislocate the Congressional scheme of enforcement. For example, 8c(15)(B)
provides that the pendency of a proceeding for review instituted by a handler
shall not impede or delay proceedings brought under 8a(6) for compliance
with an order. Because there is no provision for court review of an order on a
producer's petition, naturally there is no corresponding provision to guard
against such interference with enforcement of an order. By giving producers the
right to sue although Congress withheld that right, the suspension of a milk
order pending disposition of a producer's suit will now depend upon the
discretion of trial judges. And technical details concerning the milk industry
that were committed to the Secretary of Agriculture are now made subjects of
litigation before ill-equipped courts.
By denying them access to the courts Congress has not left producers to the
24(8), 28 U.S.C. 41(8), 28 U.S.C.A. 41(8); Mulford v. Smith, 307 U.S. 38,
59 S.Ct. 648, 83 L.Ed. 1092; Turner, Dennis & Lowry Lumber Co. v. Chicago,
M. & St. P. Ry., 271 U.S. 259, 46 S.Ct. 530, 70 L.Ed. 934; Robertson v. Argus
Hosiery Mills, 6 Cir., 121 F.2d 285.
2
See Tennessee Electric Power Co. v. T.V.A., 306 U.S. 118, 137, 138, 59 S.Ct.
366, 369, 83 L.Ed. 543.
See United States v. Rock Royal Coop., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed.
1446; H. P. Hood & Sons v. United States, 307 U.S. 588, 59 S.Ct. 1019, 83
L.Ed. 1478.
The following clauses of the Act are necessary to a consideration of this case:
'Sec. 2. It is hereby declared to be the policy of Congress
'(1) Through the exercise of the powers conferred upon the Secretary of
Agriculture under this title, to establish and maintain such orderly marketing
conditions for agricultural commodities in interfound to be 'approved or favored' either by two-thirds of the producers in
number or by volume of the commodity produced. Section 8c(19) authorizes
the Secretary to hold a referendum to determine whether producers approve.
'Sec. 8c(13)(B) No other issued under this title shall be applicable to any
producer in his capacity as a producer.'
'Sec. 8c(14) Any handler subject to an order issued under this section, or any
officer, director, agent, or employee of such handler, who violates any
provision of such order (other than a provision calling for payment of a pro rata
share of expenses) shall, on conviction, be fined not less than $50 or more than
$500 for each such violation, and each day during which such violation
continues shall be deemed a separate violation: Provided, That if the court finds
that a petition pursuant to subsection (15) of this section was filed and
prosecuted by the defendant in good faith and not for delay, no penalty shall be
imposed under this subsection for such violations as occurred between the date
upon which the defendant's petition was filed with the Secretary, and the date
upon which notice of the Secretary's ruling thereon was given to the defendant
in accordance with regulations prescribed pursuant to subsection (15).'
'Sec. 8c(15) (A) Any handler subject to an order may file a written petition with
the Secretary of Agriculture, stating that any such order or any provision of any
such order or any obligation imposed in connection therewith is not in
accordance with law and praying for a modification thereof or to be exempted
See United States v. Rock Royal Coop., 307 U.S. 533, 549, 550, 59 S.Ct. 993,
1001, 1002, 83 L.Ed. 1446.
10
The preamble to the order recites the holding of hearings and compliance with
Section 8c(9) of the Act. Section 904.0 of the Order contains the Secretary's
findings and Section 904.1 the definitions of terms.
'Sec. 904.1(6) The term 'handler' means any person, irrespective of whether
such person is a producer or an association of producers, wherever located or
operating, who engages in such handling of milk, which is sold as milk or
cream in the marketing area, as is in the current of interstate or foreign
required by Sec. 904.8(b)(3) and (g) and (h) for milk received during each
delivery period since the effective date of the most revent amendment hereof;
'(4) Subtract the total amount to be paid to producers pursuant to Sec. 904.8(b)
(2);
'(5) Subtract the total of payments required to be made for such delivery period
pursuant to Sec. 904.9(b);
'(6) Divide by the total quantity of milk which is included in these
computations. * * *
'(7) Subtract not less than 4 cents nor more than 5 cents for the purpose of
retaining a cash balance in connection with the payments set forth in Sec.
904.8(b)(3);
'(9) On the 12th day after the end of each delivery period, mail to all handlers
and publicly announce (a) such of these computations as do not disclose
information confidential pursuant to the act, (b) the blended price per
hundredweight which is the result of these computations, (c) the names of the
handlers whose milk is included in the computations, and (d) the Class II price.'
As of October 28, 1941, Subsection (5) was revoked and the subsections
following it were renumbered, and the deduction theretofore required by it was
effected by amending Subsection (7) (new Subsection (6)) to read as follows:
'(6) Subtract not less than 5 1/2 cents nor more than 6 1/2 cents for the purpose
of retaining a cash balance in connection with the payments set forth in
904.8(b)(3) and 909.9(b);'
See n. 16, infra.
Section 904.8(a) and (b), dealing with the method of making payment, reads:
'Sec. 904.8 Payments for Milk. (a) Advance payments. On or before the 10th
day after the end of each delivery period, each handler shall make payment to
producers for the approximate value of milk
received during the first 15 days of such delivery period. In no event shall such
advance payment be at a rate less than Class II price for such delivery.
'(b) Final payments. On or before the 25th day after the end of each delivery
period, each handler shall make payment, subject to the butterfat differential set
forth in paragraph (d) of this section, for the total value of milk received during
the individual producer has made his exclusive agent in the marketing of such
milk.
'(2) Any such cooperative association shall receive an amount computed at the
rate of 5 cents per hundredweight on Class I milk received from producers at a
plant operated under the exclusive control of member producers, which is sold
to proprietary handlers. This amount shall not be received on milk sold to
stores, to handlers, in which the cooperative has any ownership, or to a handler
with which the cooperative has such sales arrangements that its milk not sold as
Class I milk to such handler is not available for sale as Class I milk to other
handlers.'
Section 904.9(b) contains the direction for payment out of the cash balance
created by 904.7(b)(6), as amended, supra.
Section 904.9:
'(b) Payment to Qualified Cooperative Associations. The market administrator
shall, upon claim submitted in form as prescribed by him, make payments
authorized under paragraph (a), or issue credit therefor out of the cash balance
credited pursuant to Sec. 904.7(b)(5), on or before the 25th day after the end of
each delivery period, subject to verification of the receipts and other items on
which the amount of such payment is based.'
The deductions from payments by handlers to cooperative member producers,
referred to in Section 904.9(a)(1), quoted supra, are authorized by 904.9(e),
as follows:
'(e) Authorized member deductions. In the case of producers whose milk is
received at a plant not operated by a cooperative association of which such
producers are members and which is receiving payments
pursuant to this section, each handler shall make such deductions from the
payments to be made to such producers pursuant to Sec. 904.8 as may be
authorized by such producers and, on or before the 25th day after the end of
each delivery period, pay over such deductions to the association in whose
favor such authorizations were made.'
Section 904.10 requires each handler to pay to the market administrator not
more than 2 cents per hundredweight of milk delivered to him in order to meet
costs of administration. Section 904.11 covers the effective time, suspension, or
termination of the order.
11
12
13
14
15
16
This section has superseded 904.7(b)(5) in effect at the time this suit was
brought with reference to the deduction in issue. 6 F.R. 5482, effective October
28, 1941. See n. 10, supra.
17
Texas & N.O.R. Co. v. Brotherhood of R. & S.S. Clerks, 281 U.S. 548, 568, 50
S.Ct. 427, 433, 74 L.Ed. 1034; Virginian Ry. v. System Federation, 300 U.S.
515, 545, 57 S.Ct. 592, 598, 81 L.Ed. 789. General Committee v. M.-K.-T.R.
Co., 320 U.S. 323, 64 S.Ct. 146, and Switchmen's Union v. National Mediation
Board, 320 U.S. 297, 64 S.Ct. 95, do not look in the contrary direction. Both
assume claims created by statute in the petitioners and deny a judicial remedy
to those claims on the ground that 'Congress * * * has foreclosed resort to the
courts for enforcement of the claims asserted by the parties.' 320 U.S. 300 and
327, 64 S.Ct. 96 and 148.
18
United States v. Illinois Central R. Co., 244 U.S. 82, 87, 37 L.Ed. 584, 61 L.Ed.
1007; United States v. Los Angeles a S.L.R. Co., 273 U.S. 299, 314, 315, 47
S.Ct. 413, 416, 71 L.Ed. 651; Alabama Power Co. v. Ickes, 302 U.S. 464, 478,
58 S.Ct. 300, 303, 82 L.Ed. 374; Tennessee Power Co. v. T.V.A., 306 U.S. 118,
135, 59 S.Ct. 366, 368, 83 L.Ed. 543; Perkins v. Lukens Steel Co., 310 U.S.
113, 125, 60 S.Ct. 869, 875, 84 L.Ed. 1108; Singer & Sons v. Union Pacific R.
Co., 311 U.S. 295, 303, 61 S.Ct. 254, 257, 85 L.Ed. 198.
19
This distinction has long been recognized. Chief Justice Marshall phrased it in
vivid language as early as Marbury v. Madison, 1 Cranch 137, 165, 166, 2
L.Ed. 60, a fragment only of which follows: 'But where a specific duty is
assigned by law, and individual rights depend upon the performance of that
duty, it seems equally clear that the individual who considers himself injured,
has a right to resort to the laws of his country for a remedy.' Perkins v. Lukens
Steel Co., 310 U.S. 113, 125, 60 S.Ct. 869, 875, 84 L.Ed. 1108; Com. of
Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078.
20
Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 32 S.Ct. 340, 343, 56 L.Ed.
570; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110,
23 S.Ct. 33, 39, 47 L.Ed. 90.
21
Tennessee Power Co. v. T.V.A., 306 U.S. 118, 137, 59 S.Ct. 366, 369, 83 L.Ed.
543.
22